(a) a fixed term of nine
years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform
Act;

(b) a fixed term of ten years or more for Senators;

(c) a fixed term of eight years or less for Senators;

(d) a fixed term of the life of two or three Parliaments
for Senators;

(e) a renewable term for
Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate
tenure);

(f) limits to the terms
for Senators appointed after October 14, 2008 as set out in subclause 4(1) of
Bill C-7, the Senate Reform Act; and

(g) retrospective limits to
the terms for Senators appointed before October 14, 2008?

2. Is it within the legislative authority of the Parliament of
Canada, acting pursuant to section 91 of the Constitution Act, 1867, or
section 44 of the Constitution Act, 1982, to enact legislation that
provides a means of consulting the population of each province and territory as
to its preferences for potential nominees for appointment to the Senate
pursuant to a national process as was set out in Bill C-20, the Senate
Appointment Consultations Act?

3. Is it within the legislative authority of the Parliament of
Canada, acting pursuant to section 91 of the Constitution Act, 1867, or
section 44 of the Constitution Act, 1982, to establish a framework
setting out a basis for provincial and territorial legislatures to enact
legislation to consult their population as to their preferences for potential
nominees for appointment to the Senate as set out in the schedule to Bill C-7,
the Senate Reform Act?

5. Can an amendment to the Constitution of Canada to abolish the
Senate be accomplished by the general amending procedure set out in section 38
of the Constitution Act, 1982, by one of the following methods:

(a) by inserting a separate
provision stating that the Senate is to be abolished as of a certain date, as
an amendment to the Constitution Act, 1867or as a separate provision
that is outside of the Constitution Acts, 1867 to 1982 but that is still
part of the Constitution of Canada;

(b) by amending or repealing
some or all of the references to the Senate in the Constitution of Canada; or

Held:
Questions 1, 2, 3 and 5 are answered in the negative. Question 4 is answered
in the affirmative with respect to s. 23(4). A full repeal of s. 23(3)
requires a resolution of the legislative assembly of Quebec, pursuant to s. 43
of the Constitution Act, 1982. Question 6 is answered in the
affirmative. The implementation of consultative elections and senatorial term
limits requires consent of the Senate, the House of Commons, and the
legislative assemblies of at least seven provinces representing, in the
aggregate, half of the population of all the provinces (s. 38 and s. 42(1)(b)).
The abolition of the Senate requires the unanimous consent of the Senate, the
House of Commons, and the legislative assemblies of all Canadian provinces (s. 41(e)).

The
Senate is one of Canada’s foundational political institutions. It lies at the
heart of the agreements that gave birth to the Canadian federation. Despite
ongoing criticism and failed attempts at reform, the Senate has remained
largely unchanged since its creation. The statute that created the Senate —
the Constitution Act, 1867 — forms part of the Constitution of Canada
and can only be amended in accordance with the Constitution’s procedures for
amendment (s. 52(2) and (3), Constitution Act, 1982). The concept of an
“amendment to the Constitution of Canada”, within the meaning of Part V of the Constitution
Act, 1982, is informed by the nature of the Constitution, its underlying
principles and its rules of interpretation. The Constitution should not be
viewed as a mere collection of discrete textual provisions. It has an
architecture, a basic structure. By extension, amendments to the Constitution
are not confined to textual changes. They include changes to the Constitution’s
architecture, that modify the meaning of the constitutional text.

Part
V reflects the political consensus that the provinces must have a say in
constitutional changes that engage their interests. It contains four
categories of amending procedures. The first is the general amending procedure
— the “7/50” procedure — (s. 38, complemented by s. 42), which requires a
substantial degree of consensus between Parliament and the provincial
legislatures. The second is the unanimous consent procedure (s. 41), which
applies to certain changes deemed fundamental by the framers of the Constitution
Act, 1982. The third is the special arrangements procedure (s. 43), which
applies to amendments in relation to provisions of the Constitution that apply
to some, but not all, of the provinces. The fourth is made up of the
unilateral federal and provincial procedures, which allow unilateral amendment
of aspects of government institutions that engage purely federal or provincial
interests (ss. 44 and 45).

Question 1: Senatorial Tenure

A
change in the duration of senatorial terms would amend the Constitution of
Canada, by requiring a modification to the text of s. 29 of the Constitution
Act, 1867. The language of s. 42 of the Constitution Act, 1982 does
not encompass changes to the duration of senatorial terms. However, it does
not follow that all changes to the Senate that fall outside of s. 42 come
within the scope of s. 44. The unilateral federal amendment procedure is
limited. It is not a broad procedure that encompasses all constitutional
changes to the Senate which are not expressly included within another procedure
in Part V. The history, language, and structure of Part V indicate that s. 38,
rather than s. 44, is the general procedure for constitutional amendment. Changes
that engage the interests of the provinces in the Senate as an institution
forming an integral part of the federal system can only be achieved under the
general amending procedure. Section 44, as an exception to the general
procedure, encompasses measures that maintain or change the Senate without
altering its fundamental nature and role.

The
imposition of fixed terms for Senators engages the interests of the provinces
by changing the fundamental nature or role of the Senate. Senators are
appointed roughly for the duration of their active professional lives. This
security of tenure is intended to allow Senators to function with independence
in conducting legislative review. The imposition of fixed senatorial terms is
a significant change to senatorial tenure. Fixed terms provide a weaker
security of tenure. They imply a finite time in office and necessarily offer a
lesser degree of protection from the potential consequences of freely speaking
one’s mind on the legislative proposals of the House of Commons. The
imposition of fixed terms, even lengthy ones, constitutes a change that engages
the interests of the provinces as stakeholders in Canada’s constitutional
design and falls within the rule of general application for constitutional change
— the 7/50 procedure in s. 38.

Questions 2 and 3: Consultative Elections

Introducing
a process of consultative elections for the nomination of Senators would change
our Constitution’s architecture, by endowing Senators with a popular mandate
which is inconsistent with the Senate’s fundamental nature and role as a
complementary legislative chamber of sober second thought. The view that the
consultative election proposals would amend the Constitution of Canada is supported
by the language of Part V of the Constitution Act, 1982. The words
employed in Part V are guides to identifying the aspects of our system of
government that form part of the protected content of the Constitution. Section
42(1)(b) provides that the general amending procedure (s. 38(1)) applies
to constitutional amendments in relation to “the method of selecting
Senators”. This broad wording includes more than the formal appointment of
Senators by the Governor General and covers the implementation of consultative
elections. By employing this language, the framers of the Constitution Act,
1982 extended the constitutional protection provided by the general
amending procedure to the entire process by which Senators are “selected”.
Consequently, the implementation of consultative elections falls within the scope
of s. 42(1)(b) and is subject to the general amending procedure, without
the provincial right to “opt out”. It cannot be achieved under the unilateral
federal amending procedure. Section 44 is expressly made “subject to” s. 42 —
the categories of amendment captured by s. 42 are removed from the scope of s. 44.

Question 4: Property Qualifications

The
requirement that Senators have a personal net worth of at least $4,000 (s. 23(4),
Constitution Act, 1867) can be repealed by Parliament under the unilateral
federal amending procedure. It is precisely the type of amendment that the
framers of the Constitution Act, 1982 intended to capture under s. 44.
It updates the constitutional framework relating to the Senate without
affecting the institution’s fundamental nature and role. Similarly, the
removal of the real property requirement that Senators own land worth at least
$4,000 in the province for which they are appointed (s. 23(3), Constitution
Act, 1867) would not alter the fundamental nature and role of the Senate.
However, a full repeal of s. 23(3) would render inoperative the option in s. 23(6)
for Quebec Senators to fulfill their real property qualification in their
respective electoral divisions, effectively making it mandatory for them to
reside in the electoral divisions for which they are appointed. It would
constitute an amendment in relation to s. 23(6), which contains a special
arrangement applicable to a single province, and consequently would fall within
the scope of the special arrangement procedure. The consent of Quebec’s
National Assembly is required pursuant to s. 43 of the Constitution Act,
1982.

Questions 5 and 6: Abolition of the Senate

Abolition
of the Senate is not merely a matter relating to its “powers” or its “members”
under s. 42(1)(b) and (c) of the Constitution Act, 1982. This
provision captures Senate reform, which implies the continued existence
of the Senate. Outright abolition falls beyond its scope. To interpret s. 42
as embracing Senate abolition would depart from the ordinary meaning of its
language and is not supported by the historical record. The mention of
amendments in relation to the powers of the Senate and the number of Senators
for each province presupposes the continuing existence of a Senate and makes no
room for an indirect abolition of the Senate. Within the scope of s. 42, it is
possible to make significant changes to the powers of the Senate and the number
of Senators. But it is outside the scope of s. 42 to altogether strip the
Senate of its powers and reduce the number of Senators to zero. The abolition
of the upper chamber would entail a significant structural modification of Part
V. Amendments to the Constitution of Canada are subject to review by the
Senate. The Senate can veto amendments brought under s. 44 and can delay the
adoption of amendments made pursuant to ss. 38, 41, 42, and 43 by up to 180
days. The elimination of bicameralism would render this mechanism of review
inoperative and effectively change the dynamics of the constitutional amendment
process. The constitutional structure of Part V as a whole would be
fundamentally altered. Abolition of the Senate would therefore fundamentally
alter our constitutional architecture — by removing the bicameral form of
government that gives shape to the Constitution Act, 1867 — and would
amend Part V, which requires the unanimous consent of Parliament and the
provinces under s. 41(e) of the Constitution Act, 1982.

Bill C-20, An Act to provide for consultations with electors on
their preferences for appointments to the Senate, 2nd Sess., 39th Parl.,
2007.

Bill C-60, An Act to amend the Constitution of Canada with
respect to matters coming within the legislative authority of the Parliament of
Canada, and to approve and authorize the taking of measures necessary for the
amendment of the Constitution with respect to certain other matters, 3rd
Sess., 30th Parl., 1978, cls. 62 to 70.

Canada. Legislative Assembly. Parliamentary Debates on the Subject
of the Confederation of the British North American Provinces, 3rd Sess.,
8th Provincial Parliament of Canada. Quebec: Hunter, Rose & Co., 1865.

Canada. Minister of State for Federal-Provincial Relations. Constitutional
Reform: House of the Federation. Ottawa: Government of Canada, 1978
(Minister: Marc Lalonde).

Canada. Senate and House of Commons. Minutes of Proceedings and
Evidence of the Special Joint Committee of the Senate and of the House of
Commons on the Constitution of Canada, No. 53, 1st Sess., 32nd Parl., February
4, 1981, pp. 50, 67-68.

Canada. Senate and House of Commons. The Special Joint
Committee of the Senate and of the House of Commons on the Constitution of
Canada: Final Report. Ottawa: Queen’s Printer, 1972 (Joint Chairs:
Gildas L. Molgat and Mark MacGuigan).

Newman, Warren J. “Defining the ‘Constitution of Canada’ Since
1982: The Scope of the Legislative Powers of Constitutional Amendment under
Sections 44 and 45 of the Constitution Act, 1982” (2003), 22 S.C.L.R.
(2d) 423.

Whyte, John D. “Senate Reform: What Does the Constitution Say?”, in
Jennifer Smith, ed., The Democratic Dilemma: Reforming the Canadian Senate.
Montréal and Kingston: McGill-Queen’s University
Press, 2009, 97.

REFERENCE
by the Governor in Council concerning reform of the Senate, as set out in Order
in Council P.C. 2013-70, dated February 1, 2013. Questions 1, 2, 3 and 5 are
answered in the negative. Question 4 is answered in the affirmative with
respect to s. 23(4). A full repeal of s. 23(3) requires a resolution of the
legislative assembly of Quebec, pursuant to s. 43 of the Constitution Act,
1982. Question 6 is answered in the affirmative.

Robert J. Frater, Christopher
M. Rupar and
Warren J. Newman, for the Attorney General of
Canada.

Michel Y. Hélie and Josh
Hunter, for
the intervener the Attorney General of Ontario.

Jean-Yves Bernard and Jean-François
Beaupré, for
the intervener the Attorney General of Quebec.

Edward A. Gores, Q.C., for the intervener the
Attorney General of Nova Scotia.

Denis Thériaultand
David D. Eidt,for the intervener the Attorney
General of New Brunswick.

Heather S. Leonoff, Q.C., and Charles Murray, for
the intervener the Attorney General of Manitoba.

Nancy E. Brown, for the intervener the Attorney General of British Columbia.

[1]The Senate is one of Canada’s foundational
political institutions. It lies at the heart of the agreements that gave birth
to the Canadian federation. Yet from its first sittings, voices have called for
reform of the Senate and even, on occasion, for its outright abolition.

[2]The Government of Canada now asks this Court,
under s. 53 of the Supreme Court Act, R.S.C. 1985, c. S-26, to answer
essentially four questions: (1) Can Parliament unilaterally implement a
framework for consultative elections for appointments to the Senate? (2) Can
Parliament unilaterally set fixed terms for Senators? (3) Can Parliament
unilaterally remove from the Constitution Act, 1867 the requirement that
Senators must own land worth $4,000 in the province for which they are
appointed and have a net worth of at least $4,000? and (4) What degree of
provincial consent is required to abolish the Senate?

[3]We conclude that Parliament cannot unilaterally
achieve most of the proposed changes to the Senate, which require the consent
of at least seven provinces representing, in the aggregate, at least half of
the population of all the provinces. We further conclude that abolition of the
Senate requires the consent of all of the provinces. Abolition of the Senate
would fundamentally change Canada’s constitutional structure, including its
procedures for amending the Constitution, and can only be done with unanimous
federal-provincial consensus.

[4]This said, our conclusions are tied to the
specific questions that were put before the Court. Our role is not to speculate
on the full range of possible changes to the Senate. Rather, the proper role of
this Court in the ongoing debate regarding the future of the Senate is to
determine the legal framework for implementing the specific changes
contemplated in the questions put to us. The desirability of these changes is
not a question for the Court; it is an issue for Canadians and their
legislatures.

II.The Reference Questions

[5]On February 1, 2013, the Governor in Council
issued Order in Council P.C. 2013-70, which referred the following questions to
this Court, under s. 53 of the Supreme Court Act:

(a) a
fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate
Reform Act;

(b) a
fixed term of ten years or more for Senators;

(c) a
fixed term of eight years or less for Senators;

(d) a
fixed term of the life of two or three Parliaments for Senators;

(e) a
renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution
Act, 2006 (Senate tenure);

(f) limits
to the terms for Senators appointed after October 14, 2008 as set out in
subclause 4(1) of Bill C-7, the Senate Reform Act; and

(g) retrospective
limits to the terms for Senators appointed before October 14, 2008?

2. Is it within the legislative authority of the Parliament of
Canada, acting pursuant to section 91 of the Constitution Act, 1867, or
section 44 of the Constitution Act, 1982, to enact legislation that
provides a means of consulting the population of each province and territory as
to its preferences for potential nominees for appointment to the Senate
pursuant to a national process as was set out in Bill C-20, the Senate
Appointment Consultations Act?

3. Is it within the legislative authority of the Parliament of
Canada, acting pursuant to section 91 of the Constitution Act, 1867, or
section 44 of the Constitution Act, 1982, to establish a framework
setting out a basis for provincial and territorial legislatures to enact
legislation to consult their population as to their preferences for potential
nominees for appointment to the Senate as set out in the schedule to Bill C-7,
the Senate Reform Act?

5. Can an amendment to the Constitution of Canada to abolish the
Senate be accomplished by the general amending procedure set out in section 38
of the Constitution Act, 1982, by one of the following methods:

(a) by
inserting a separate provision stating that the Senate is to be abolished as of
a certain date, as an amendment to the Constitution Act, 1867or as a
separate provision that is outside of the Constitution Acts, 1867 to 1982 but
that is still part of the Constitution of Canada;

(b) by
amending or repealing some or all of the references to the Senate in the
Constitution of Canada; or

[6]To illustrate the content of the proposed
changes, the questions refer to Bills S-4, C-20, and C-7. While Bills S-4 and
C-20 were tabled respectively in 2006 and 2007, Bill C-7 was given first
reading on June 21, 2011. All three bills died on the Order Paper.

[7]Bill S-4 would replace the current senatorial
term of office — which lasts until the attainment of the age of 75 — with
renewable eight-year terms.

[8]Bills C-20 and C-7 each set out a detailed
framework for consultative elections of “nominees” for Senate office. Under
Bill C-20, the names of the winners of national consultative elections would be
submitted to the Prime Minister of Canada, for consideration by him or her when
recommending nominees to the Governor General for vacant Senate seats.

[9]Similarly, Bill C-7 provides that Senators would
sit for a non-renewable nine-year term and sets out a model statute for provincial
and territorial legislation creating consultative elections. It provides that
the Prime Minister “must” consider names from the lists of successful
candidates: cl. 3. Its appended model statute states the principle that
Senators “should be chosen” from among those candidates: cl. 1 of the Schedule.

[10]This Court is not the first to consider the
questions posed by the Reference. When Parliament introduced Bill C-7, the
Government of Quebec asked the Quebec Court of Appeal to advise whether the
proposed changes to the Senate could be achieved unilaterally by Parliament.

[11]The Court of Appeal held that Parliament could not
unilaterally change the terms for Senators or introduce consultative elections
for the appointment of Senators: Projet de loi fédéral relatif au Sénat (Re),
2013 QCCA1807 (CanLII) (the “Quebec Senate Reference”). Rather,
it found that these changes fall under s. 42 of the Constitution Act, 1982
and require the consent of the legislative assemblies of at least two-thirds of
the provinces that represent, in the aggregate, at least half of the population
of all the provinces. In its view, the framers of the Constitution Act, 1982
intended to constitutionally entrench the status quo with respect to the
Senate until the day when broad federal-provincial consensus could be obtained
on the matter of Senate reform.

[12]Although the Court of Appeal was not directly
asked to consider how the Senate could be abolished, it expressed the view that
abolition would require unanimous provincial consent: para. 29. It reasoned
that abolition of the Senate would amend by implication the procedures for
constitutional amendment in Part V of the Constitution Act, 1982,
something which can only be done with unanimous provincial consent under s. 41(e)
of the Act.

III.The Senate

[13]It is appropriate to briefly introduce the
institution at the heart of this Reference.

[14]The framers of the Constitution Act, 1867sought
to adapt the British form of government to a new country, in order to have a
“Constitution similar in Principle to that of the United Kingdom”: preamble.
They wanted to preserve the British structure of a lower legislative chamber
composed of elected representatives, an upper legislative chamber made up of
elites appointed by the Crown, and the Crown as head of state.

[15]The upper legislative chamber, which the framers
named the Senate, was modeled on the British House of Lords, but adapted to
Canadian realities. As in the United Kingdom, it was intended to provide “sober
second thought” on the legislation adopted by the popular representatives in
the House of Commons: John A. Macdonald, Province of Canada, Legislative
Assembly, Parliamentary Debates on the Subject of the Confederation of the
British North American Provinces, 3rd Sess., 8th Prov. Parl. (the “1865
Debates”), February 6, 1865, at p. 35. However, it played the additional
role of providing a distinct form of representation for the regions that had
joined Confederation and ceded a significant portion of their legislative
powers to the new federal Parliament: Figueroa v. Canada (Attorney General),
2003 SCC 37, [2003] 1 S.C.R. 912, at paras. 164-66, per LeBel J. While
representation in the House of Commons was proportional to the population of
the new Canadian provinces, each region was provided equal representation in
the Senate irrespective of population. This was intended to assure the regions
that their voices would continue to be heard in the legislative process even
though they might become minorities within the overall population of Canada:
George Brown, 1865 Debates, February 8, 1865, at p. 88; D. Pinard, “The
Canadian Senate: An Upper House Criticized Yet Condemned to Survive
Unchanged?”, in J. Luther, P. Passaglia and R. Tarchi, eds., A World of
Second Chambers: Handbook for Constitutional Studies on Bicameralism
(2006), 459, at p. 462.

[16]Over time, the Senate also came to represent
various groups that were under-represented in the House of Commons. It served
as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups
that did not always have a meaningful opportunity to present their views
through the popular democratic process: B. Pelletier, “Réponses suggérées aux
questions soulevées par le renvoi à la Cour suprême du Canada concernant la
réforme du Sénat” (2013), 43 R.G.D. 445 (“Réponses suggérées”), at pp.
485-86.

[17]Although the product of consensus, the Senate
rapidly attracted criticism and reform proposals. Some felt that it failed to
provide “sober second thought” and reflected the same partisan spirit as the
House of Commons. Others criticized it for failing to provide meaningful
representation of the interests of the provinces as originally intended, and
contended that it lacked democratic legitimacy.

[18]In the years immediately preceding patriation of
the Constitution, proposals for reform focused mainly on three aspects: (i)
modifying the distribution of seats in the Senate;[1] (ii)
circumscribing the powers of the Senate;[2] and (iii) changing the way in which Senators are selected for
appointment.[3] These proposals assumed the continued existence of an upper
chamber, but sought to improve its contribution to the legislative process.

[19]In 1978, the federal government tabled a bill to
comprehensively reform the Senate by readjusting the distribution of seats
between the regions; removing the Senate’s absolute veto over most legislation
and replacing it with an ability to delay the adoption of legislation; and
giving the House of Commons and the provincial legislatures the power to select
Senators: Constitutional Amendment Act, 1978 (Bill C-60), June 20, 1978,
cls. 62 to 70. The bill was not adopted and, in 1980, this Court concluded that
Parliament did not have the power under the Constitution as it then stood to
unilaterally modify the fundamental features of the Senate or to abolish it: Reference
re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R.
54 (“Upper House Reference”).

[20]Despite ongoing criticism and failed attempts at
reform, the Senate has remained largely unchanged since its creation. The
question before us now is not whether the Senate should be reformed or what
reforms would be preferable, but rather how the specific changes set out in the
Reference can be accomplished under the Constitution. This brings us to the
issue of constitutional amendment in Canada.

IV.The Part V Amending Procedures

[21]The statute that created the Senate — the Constitution
Act, 1867 — forms part of the Constitution of Canada and can only be
amended in accordance with the Constitution’s procedures for amendment: s.
52(2) and (3), Constitution Act, 1982. Consequently, we must determine
whether the changes contemplated in the Reference amend the Constitutionand,
if so, which amendment procedures are applicable.

[22]Before answering these questions, we discuss
constitutional amendment in Canada generally. We examine in turn the nature and
content of the Constitution of Canada, the concept of constitutional amendment,
and the Constitution’s procedures for amendment.

A.The Constitution of Canada

[23]The Constitution of Canada is “a comprehensive
set of rules and principles” that provides “an exhaustive legal framework for
our system of government”: Reference re Secession of Quebec, [1998] 2
S.C.R. 217 (“Secession Reference”), at para. 32. It defines the powers
of the constituent elements of Canada’s system of government — the executive,
the legislatures, and the courts — as well as the division of powers between
the federal and provincial governments: Reference re Remuneration of Judges
of the Provincial Court of Prince Edward Island,[1997] 3 S.C.R. 3
(“Provincial Court Judges Reference”), at para. 108. And it governs the
state’s relationship with the individual. Governmental power cannot lawfully be
exercised, unless it conforms to the Constitution: s. 52(1), Constitution
Act, 1982; Secession Reference, at paras. 70-78; Reference reSupreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433 (“Supreme
Court Act Reference”), at para. 89.

(c) any
amendment to any Act or order referred to in paragraph (a) or (b).

The documents listed in the
Schedule to the Constitution Act, 1982as forming part of the
Constitutioninclude the Constitution Act, 1867. Section 52 does
not provide an exhaustive definition of the content of the Constitution of
Canada: Supreme Court Act Reference, at paras. 97-100; Secession
Reference, at para. 32.

[26]These rules and principles of interpretation
have led this Court to conclude that the Constitution should be viewed as
having an “internal architecture”, or “basic constitutional structure”: Secession
Reference, at para. 50; OPSEU v. Ontario (Attorney General), [1987]
2 S.C.R. 2, at p. 57; see also Supreme Court Act Reference, at para. 82.
The notion of architecture expresses the principle that “[t]he individual
elements of the Constitution are linked to the others, and must be interpreted
by reference to the structure of the Constitution as a whole”: Secession
Reference, at para. 50; see also the discussion on this Court’s approach to
constitutional interpretation in M. D. Walters, “Written Constitutions and
Unwritten Constitutionalism”, in G. Huscroft, ed., Expounding the
Constitution: Essays in Constitutional Theory (2008), 245, at pp. 264-65.
In other words, the Constitution must be interpreted with a view to discerning
the structure of government that it seeks to implement. The assumptions that
underlie the text and the manner in which the constitutional provisions are
intended to interact with one another must inform our interpretation,
understanding, and application of the text.

B.Amendments to the Constitution of Canada

[27]The concept of an “amendment to the Constitution
of Canada”, within the meaning of Part V of the Constitution Act, 1982,
is informed by the nature of the Constitution and its rules of interpretation.
As discussed, the Constitution should not be viewed as a mere collection of
discrete textual provisions. It has an architecture, a basic structure. By
extension, amendments to the Constitution are not confined to textual changes.
They include changes to the Constitution’s architecture.

C.The Part V Amending Procedures

[28]Part V of the Constitution Act, 1982
provides the blueprint for how to amend the Constitution of Canada (see
Appendix). It tells us what changes Parliament and the provincial legislatures
can make unilaterally, what changes require substantial federal and provincial
consent, and what changes require unanimous agreement.

(1) History

[29]The Part V amending formula reflects the
principle that constitutional change that engages provincial interests requires
both the consent of Parliament and a significant degree of provincial consent.
Prior to patriation, constitutional amendment in Canada required the adoption
of a law by the British Parliament following a joint resolution addressed to it
by the Senate and the House of Commons, since the Constitution Act, 1867was
an Act of the British Parliament. There was no formal requirement for
consultation with the provinces. However, in practice, throughout the 20th
century, the federal government consulted with the provinces on constitutional
amendments that directly affected federal-provincial relations, and obtained
their consent before putting a joint address to the British Parliament: Canada,
Minister of Justice, The Amendment of the Constitution of Canada (1965)
(“Favreau”), at pp. 15-16. By the time of patriation, this practice had ripened
into a constitutional convention requiring substantial consent to
constitutional change directly affecting federal-provincial relations: Reference
re Resolution to amend the Constitution, [1981] 1 S.C.R. 753, at pp.
889-95; Reference re Objection by Quebec to a Resolution to amend the
Constitution, [1982] 2 S.C.R. 793.

[30]Beginning in the 1930s, the federal government
and the provinces held a series of conferences to discuss the possibility of
adopting a formal amending formula. This produced several proposals: see in
particular the Fulton-Favreau formula in Favreau, at pp. 110-15; and the
Victoria Charter, in Constitutional Conference: Proceedings (1971), App.
B. In October 1980, amid efforts to achieve broad constitutional reform, the
federal government tabled a new proposed amending formula in the House of
Commons and the Senate: “Proposed Resolution for a Joint Address to Her Majesty
the Queen respecting the Constitution of Canada”, in The Canadian Constitution
1980: Proposed Resolution respecting the Constitution of Canada (1980). In
response, the provincial premiers developed a counter-proposal that became the
template for Part V of the Constitution Act, 1982 — the “April Accord”
of 1981: Constitutional Accord: Canadian Patriation Plan (1981).

[31]The April Accord, and ultimately Part V, reflect
the political consensus that the provinces must have a say in constitutional
changes that engage their interests. The “underlying purpose” of these
documents is “to constrain unilateral federal powers to effect constitutional
change”: P. J. Monahan and B. Shaw, Constitutional Law (4th ed. 2013),
at p. 204; Supreme Court Act Reference, at paras. 98-100. They also
consecrate the principle of “the constitutional equality of provinces as equal
partners in Confederation”: Constitutional Accord: Canadian Patriation Plan,
General Comment, in Part A, at p. 1. In principle, no province stands above the
others with respect to constitutional amendments, and all provinces are given
the same rights in the process of amendment. The result is an amending formula
designed to foster dialogue between the federal government and the provinces on
matters of constitutional change, and to protect Canada’s constitutional status
quo until such time as reforms are agreed upon.

(2) The Amending Procedures

[32]Part V contains four categories of amending
procedures. The first is the general amending procedure (s. 38, complemented by
s. 42), which requires a substantial degree of consensus between Parliament and
the provincial legislatures. The second is the unanimous consent procedure (s.
41), which applies to certain changes deemed fundamental by the framers of the Constitution
Act, 1982. The third is the special arrangements procedure (s. 43), which applies
to amendments in relation to provisions of the Constitution that apply to some,
but not all, of the provinces. The fourth is made up of the unilateral federal
and provincial procedures, which allow unilateral amendment of aspects of
government institutions that engage purely federal or provincial interests (ss.
44 and 45).

38.
(1) An amendment to the Constitution of Canada may
be made by proclamation issued by the Governor General under the Great Seal of
Canada where so authorized by

(a) resolutions
of the Senate and House of Commons; and

(b) resolutions
of the legislative assemblies of at least two-thirds of the provinces that
have, in the aggregate, according to the then latest general census, at least
fifty per cent of the population of all the provinces.

(2) An
amendment made under subsection (1) that derogates from the legislative powers,
the proprietary rights or any other rights or privileges of the legislature or
government of a province shall require a resolution supported by a majority of
the members of each of the Senate, the House of Commons and the legislative
assemblies required under subsection (1).

(3) An
amendment referred to in subsection (2) shall not have effect in a province the
legislative assembly of which has expressed its dissent thereto by resolution
supported by a majority of its members prior to the issue of the proclamation
to which the amendment relates unless that legislative assembly, subsequently,
by resolution supported by a majority of its members, revokes its dissent and
authorizes the amendment.

(4) A
resolution of dissent made for the purposes of subsection (3) may be revoked at
any time before or after the issue of the proclamation to which it relates.

[34]The process set out in s. 38 is the general rule
for amendments to the Constitution of Canada. It reflects the principle that
substantial provincial consent must be obtained for constitutional change that
engages provincial interests. Section 38 codifies what is colloquially referred
to as the “7/50” procedure — amendments to the Constitution of Canada must be
authorized by resolutions of the Senate, the House of Commons, and legislative
assemblies of at least seven provinces whose population represents, in the
aggregate, at least half of the current population of all the provinces.
Additionally, it grants to the provinces the right to “opt out” of constitutional
amendments that “derogat[e] from the legislative powers, the proprietary rights
or any other rights or privileges of the legislature or government of a
province”.

[35]By requiring significant provincial consensus
while stopping short of unanimity, s. 38 “achieves a compromise between the
demands of legitimacy and flexibility”: J. Cameron, “To Amend the Process of
Amendment”, in G.-A. Beaudoin et al., Federalism for the Future: Essential
Reforms (1998), 315, at p. 324. Its “underlying purpose . . . is to protect
the provinces from having their rights or privileges negatively affected
without their consent”: Monahan and Shaw, at p. 192.

[36]The s. 38 procedure represents the balance
deemed appropriate by the framers of the Constitution Act, 1982for most
constitutional amendments, apart from those contemplated in one of the other
provisions in Part V. Section 38 is thus the procedure of general application
for amendments to the Constitution of Canada. As a result, the other procedures
in Part V should be construed as exceptions to the general rule.

(f) notwithstanding
any other law or practice, the establishment of new provinces.

(2) Subsections
38(2) to (4) do not apply in respect of amendments in relation to matters referred
to in subsection (1).

[38]This provision serves two purposes. First, the
express inclusion of certain matters in s. 42 provided the framers of the Constitution
Act, 1982with greater certainty that the 7/50 procedure would apply to
amendments in relation to those matters: J. D. Whyte, “Senate Reform: What Does
the Constitution Say?”, in J. Smith, ed., The Democratic Dilemma: Reforming
the Canadian Senate (2009),97, at p. 102. Second, the provincial
right to “opt out” of certain amendments contemplated in s. 38(2) to (4) does
not apply to the categories of amendments in s. 42. This ensures that
amendments made under s. 42 will apply consistently to all the provinces and
allows the changes contemplated in the provision to be implemented in a
coherent manner throughout Canada.

[39]Section 42(1)(b) of the Constitution
Act, 1982 expressly makes the general amendment procedure applicable to
amendments in relation to “the powers of the Senate and the method of selecting
Senators”. We discuss below the meaning of this statutory language and its
bearing on the questions before us.

41. An amendment to the Constitution of Canada in relation to the
following matters may be made by proclamation issued by the Governor General
under the Great Seal of Canada only where authorized by resolutions of the
Senate and House of Commons and of the legislative assembly of each province:

(a) the
office of the Queen, the Governor General and the Lieutenant Governor of a
province;

(b) the
right of a province to a number of members in the House of Commons not less
than the number of Senators by which the province is entitled to be represented
at the time this Part comes into force;

(c) subject
to section 43, the use of the English or the French language;

(d) the
composition of the Supreme Court of Canada; and

(e) an
amendment to this Part.

[41]Section 41 requires the unanimous consent of the
Senate, the House of Commons, and all the provincial legislative assemblies for
the categories of amendments enumerated in the provision. It “accords the
highest level of constitutional protection and entrenchment” to the enumerated
matters: W. J. Newman, “Living with the Amending Procedures: Prospects for
Future Constitutional Reform in Canada” (2007), 37 S.C.L.R. (2d)383,
at p. 388. It is an exception to the general amending procedure. It creates an
exacting amending procedure that is designed to apply to certain fundamental
changes to the Constitution of Canada. Professor Pelletier aptly describes the
rationale for requiring unanimity for the enumerated categories of amendments:

[translation] . . . the unanimity rule
provided for in section 41 of the 1982 Act is justified by the need . . . to
give each of the partners of Canada’s federal compromise a veto on those topics
that are considered the most essential to the survival of the state.

43.
An amendment to the Constitution of Canada in
relation to any provision that applies to one or more, but not all, provinces,
including

(a) any
alteration to boundaries between provinces, and

(b) any
amendment to any provision that relates to the use of the English or the French
language within a province,

may be made by proclamation
issued by the Governor General under the Great Seal of Canada only where so
authorized by resolutions of the Senate and House of Commons and of the
legislative assembly of each province to which the amendment applies.

[43]Section 43 applies to amendments in relation to
provisions of the Constitution of Canada that apply to some, but not all, of
the provinces. The determination of its scope and of the effects of its
interaction with other provisions of Part V presents significant conceptual
difficulties, leading Professor Scott to term it the “Rubik’s Cube” of Part V:
S. A. Scott, “Pussycat, Pussycat or Patriation and the New Constitutional
Amendment Processes” (1982), 20 U.W.O. L. Rev. 247, at pp. 292-98. We
will limit our remarks on s. 43 to what is necessary to answer the Reference
questions before us.

[44]At the very least, s. 43 is triggered when a
constitutional amendment relates to a provision of the Constitution of Canada
that contains a “special arrangement” applicable only to one or several, but
not all, of the provinces. In such cases, the use of the 7/50 procedure would
overshoot the mark, by making adoption of the amendment contingent upon the
consent of provinces to which the provision does not apply. Section 43 also
serves to ensure that those provisions cannot be amended without the consent of
the provinces for which the arrangement was devised: Monahan and Shaw, at p.
210.

[47]Sections 91(1) and 92(1) of the Constitution
Act, 1867granted the federal and provincial governments the power to amend
their respective constitutions, provided that the amendments did not engage the
interests of the other level of government. Section 91(1) was worded broadly,
allowing Parliament to amend the “Constitution of Canada”, subject to certain
restrictions. In 1980, the federal government asked this Court whether
Parliament could unilaterally implement sweeping reforms to the Senate under s.
91(1). This Court concluded that s. 91(1) allowed Parliament to amend “the
constitution of the federal government in matters of interest only to that
government”: Upper House Reference, at p. 71. It followed that s. 91(1)
did not give Parliament the power to unilaterally make constitutional changes
such as the abolition of the Senate or the modification of the Senate’s
essential features, since these changes engaged the interests of the provinces
as well as those of the federal government: ibid., at pp. 74-75 etseq. Likewise, s. 92(1) allowed the provincial legislatures to enact
amendments only in relation to “the operation of an organ of the government of
the province, provided it is not otherwise entrenched as being indivisibly
related to the implementation of the federal principle or to a fundamental term
or condition of the union”: OPSEU, at p. 40, per Beetz J.

[48]As the successors to those provisions, ss. 44
and 45 give the federal and provincial legislatures the ability to unilaterally
amend certain aspects of the Constitution that relate to their own level of
government, but which do not engage the interests of the other level of
government. This limited ability to make changes unilaterally reflects the
principle that Parliament and the provinces are equal stakeholders in the
Canadian constitutional design. Neither level of government acting alone can
alter the fundamental nature and role of the institutions provided for in the
Constitution. This said, those institutions can be maintained and even changed
to some extent under ss. 44 and 45, provided that their fundamental nature and
role remain intact.

V.How Can The Senate Changes Contemplated in the Reference Be Achieved?

[49]The Reference questions ask whether Parliament,
acting alone, can reform the Senate by creating consultative elections to
select senatorial nominees endorsed by the populations of the various provinces
and territories, by limiting senatorial tenure to fixed terms, and by removing
the personal wealth and real property requirements for Senators. We will
address each of these issues in turn.

A.Consultative Elections

[50]The text of the Constitution Act, 1867provides
for the formal appointment of Senators by the Governor General:

24. The Governor General shall from Time to Time, in the Queen’s Name,
by Instrument under the Great Seal of Canada, summon qualified Persons to the
Senate; and, subject to the Provisions of this Act, every Person so summoned
shall become and be a Member of the Senate and a Senator.

32. When a Vacancy happens in the Senate by Resignation, Death, or
otherwise, the Governor General shall by Summons to a fit and qualified Person
fill the Vacancy.

In practice, constitutional
convention requires the Governor General to follow the recommendations of the
Prime Minister of Canada when filling Senate vacancies.

[51]The Attorney General of Canada (supported by the
attorneys general of Saskatchewan and Alberta as well as one of the amici
curiae)submits that implementing consultative elections for
Senators does not constitute an amendment to the Constitution of Canada. He
argues that this reform would not change the text of the Constitution Act,
1867, nor themeans of selecting Senators. He points out that the
formal mechanism for appointing Senators — summons by the Governor General
acting on the advice of the Prime Minister — would remain untouched.
Alternatively, he submits that if introducing consultative elections
constitutes an amendment to the Constitution, then it can be achieved
unilaterally by Parliament under s. 44 of the Constitution Act, 1982.

[52]In our view, the argument that introducing
consultative elections does not constitute an amendment to the Constitution
privileges form over substance. It reduces the notion of constitutional
amendment to a matter of whether or not the letter of the constitutional text
is modified. This narrow approach is inconsistent with the broad and purposive
manner in which the Constitution is understood and interpreted, as discussed
above. While the provisions regarding the appointment of Senators would remain
textually untouched, the Senate’s fundamental nature and role as a
complementary legislative body of sober second thought would be significantly
altered.

[53]We conclude that each of the proposed
consultative elections would constitute an amendment to the Constitution of
Canada and require substantial provincial consent under the general amending
procedure, without the provincial right to “opt out” of the amendment (s. 42).
We reach this conclusion for three reasons: (1) the proposed consultative
elections would fundamentally alter the architecture of the Constitution; (2)
the text of Part V expressly makes the general amending procedure applicable to
a change of this nature; and (3) the proposed change is beyond the scope of the
unilateral federal amending procedure (s. 44).

(1) Consultative Elections Would Fundamentally Alter the Architecture of
the Constitution

[54]The implementation of consultative elections
would amend the Constitution of Canada by fundamentally altering its
architecture. It would modify the Senate’s role within our constitutional
structure as a complementary legislative body of sober second thought.

[55]The Constitution Act, 1867contemplates a
specific structure for the federal Parliament, “similar in Principle to that of
the United Kingdom”: preamble. The Act creates both a lower elected and
an upper appointed legislative chamber: s. 17. It expressly provides
that the members of the lower chamber — the House of Commons — “shall be
elected” by the population of the various provinces: s. 37. By contrast, it
provides that Senators shall be “summoned” (i.e.appointed) by the
Governor General: ss. 24 and 32.

[56]The contrast between election for members of the
House of Commons and executive appointment for Senators is not an accident of
history. The framers of the Constitution Act, 1867 deliberately chose
executive appointment of Senators in order to allow the Senate to play the
specific role of a complementary legislative body of “sober second thought”.

[57]As this Court wrote in the Upper House
Reference, “[i]n creating the Senate in the manner provided in the Act, it
is clear that the intention was to make the Senate a thoroughly independent
body which could canvass dispassionately the measures of the House of
Commons”: p. 77 (emphasis added). The framers sought to endow the Senate
with independence from the electoral process to which members of the House of
Commons were subject, in order to remove Senators from a partisan political
arena that required unremitting consideration of short-term political
objectives.

[58]Correlatively, the choice of executive
appointment for Senators was also intended to ensure that the Senate would be a
complementary legislative body, rather than a perennial rival of the
House of Commons in the legislative process. Appointed Senators would not have
a popular mandate — they would not have the expectations and legitimacy that
stem from popular election. This would ensure that they would confine themselves
to their role as a body mainly conducting legislative review, rather than as a
coequal of the House of Commons. As John A. Macdonald put it during the
Parliamentary debates regarding Confederation, “[t]here
is . . . a greater danger of an irreconcilable difference of opinion between
the two branches of the legislature, if the upper be elective, than if it holds
its commission from the Crown”: 1865 Debates,February 6, 1865,
at p. 37. An appointed Senate would be a body “calmly
considering the legislation initiated by the popular branch, and preventing any
hasty or ill considered legislation which may come from that body, but it
will never set itself in opposition against the deliberate and understood
wishes of the people”: ibid., at p. 36 (emphasis added).

[59]The appointed status of Senators, with its
attendant assumption that appointment would prevent Senators from overstepping
their role as a complementary legislative body, shapes the architecture of the Constitution
Act, 1867. It explains why the framers did not deem it necessary to
textually specify how the powers of the Senate relate to those of the House of
Commons or how to resolve a deadlock between the two chambers. Indeed, on its
face the Constitution Act, 1867grants as much legislative power to the
Senate as to the House of Commons, with the exception that the House of Commons
has the exclusive power to originate appropriation and tax bills (s. 53). As
Professor Smith aptly summarizes:

[The framers’] original answer
to the clash that would inevitably occur between elected chambers was to make
the Senate appointed. This assured that a government enjoying the confidence of
the House of Commons would normally be able to have its legislation adopted by
Parliament, but gave the Senate the ability to act as a check in those rare
instances when it was absolutely necessary.

(D. E.
Smith, The Canadian Senate in Bicameral Perspective (2003), at p. 169;
see also A. Heard, “Constitutional Doubts about Bill C-20 and Senatorial
Elections”, in Smith, The Democratic Dilemma, 81, at p. 95.)

[60]The proposed consultative elections would
fundamentally modify the constitutional architecture we have just described
and, by extension, would constitute an amendment to the Constitution. They
would weaken the Senate’s role of sober second thought and would give it the
democratic legitimacy to systematically block the House of Commons, contrary to
its constitutional design.

[61]Federal legislation providing for the
consultative election of Senators would have the practical effect of subjecting
Senators to the political pressures of the electoral process and of endowing
them with a popular mandate. Senators selected from among the listed nominees
would become popular representatives. They would have won a “true electoral
contest” (Quebec Senate Reference, at para. 71), during which they would
presumably have laid out a campaign platform and made electoral promises:
Pelletier, “Réponses suggérées”, at pp. 470-71. They would join the Senate
after acquiring the mandate and legitimacy that flow from popular election.

[62]The Attorney General of Canada counters that
this broad structural change would not occur because the Prime Minister would
retain the ability to ignore the results of the consultative elections and to
name whomever he or she wishes to the Senate. We cannot accept this argument.
Bills C-20 and C-7 are designed to result in the appointment to the Senate of
nominees selected by the population of the provinces and territories. Bill C-7
is the more explicit of the two bills, as it provides that the Prime Minister
“must” consider the names on the lists of elected candidates. It is true that,
in theory, prime ministers could ignore the election results and rarely, or
indeed never, recommend to the Governor General the winners of the consultative
elections. However, the purpose of the bills is clear: to bring about a Senate
with a popular mandate. We cannot assume that future prime ministers will
defeat this purpose by ignoring the results of costly and hard-fought
consultative elections: see for example the discussion in M. D. Walters, “The
Constitutional Form and Reform of the Senate: Thoughts on the Constitutionality
of Bill C-7” (2013), 7 J.P.P.L. 37, at pp. 47-48. A legal analysis of
the constitutional nature and effects of proposed legislation cannot be
premised on the assumption that the legislation will fail to bring about the
changes it seeks to achieve.

[63]In summary, the consultative election proposals
set out in the Reference questions would amend the Constitution of Canada by
changing the Senate’s role within our constitutional structure from a
complementary legislative body of sober second thought to a legislative body
endowed with a popular mandate and democratic legitimacy.

(2) The Wording of
Part V Indicates That the Proposal for Consultative Elections Attracts the
General Amending Procedure

[64]Our view that the consultative election
proposals would amend the Constitution of Canada is supported by the language
of Part V. The words employed in Part V are guides to identifying the aspects
of our system of government that form part of the protected content of the
Constitution. Section 42(1)(b) of theConstitution Act, 1982
provides that the general amending procedure (s. 38(1)) applies to
constitutional amendments in relation to “the method of selecting Senators” (“le
mode de sélection des sénateurs”). This broad wording covers the
implementation of consultative elections, indicating that a constitutional
amendment is required and making that amendment subject to the general
procedure: H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (5th
ed. 2008), at p. 343; Whyte, at p. 106; see also C.-E. Côté,
“L’inconstitutionnalité du projet d’élections fédérales sénatoriales” (2010), 3
R.Q.D.C. 81, at p. 83, cited in the Quebec Senate Reference, at
para. 50; Walters, “The Constitutional Form and Reform of the
Senate”, at p. 52.

[65]The words “the method of selecting Senators”
include more than the formal appointment of Senators by the Governor General.
“[S]ection 42(b) refers to the method of selecting persons for
appointment, not the means of appointment”: Whyte, at p. 106 (emphasis in
original). By employing this language, the framers of the Constitution Act,
1982extended the constitutional protection provided by the general amending
procedure to the entire process by which Senators are “selected”. The proposed
consultative elections would produce lists of candidates, from which prime
ministers would be expected to choose when making appointments to the Senate.
The compilation of these lists through national or provincial and territorial
elections and the Prime Minister’s consideration of them prior to making
recommendations to the Governor General would form part of the “method of
selecting Senators”. Consequently, the implementation of consultative elections
falls within the scope of s. 42(1)(b) and is subject to the general
amending procedure, without the provincial right to “opt out”.

[66]In like vein, the Attorney General of Canada
argues that consultative elections are not “in pith and substance” amendments
in relation to the “method of selecting Senators”. He draws upon the doctrine
of pith and substance, which is employed by courts in division of powers cases
to decide whether legislation was validly enacted by a level of government: see
Hogg, at pp. 15-7 to 15-10. The courts look to whether legislation, in its
purpose and effects, falls within one of the classes of subjects over which the
Constitution gives power to the enacting body: Reference re Securities Act,
2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 63-66. The Attorney General’s
position is that legislation implementing consultative elections would not, in
its purpose and effects, constitute an amendment in relation to the “method of
selecting Senators”. He confines the meaning of this expression to the formal
mechanism of appointment of Senators by the Governor General.

[67]As discussed, the plain meaning of the words
“the method of selecting Senators” goes beyond the formal mechanism of
appointment. Borrowing a doctrine from the division of powers jurisprudence
does not avoid this textual difficulty. Even if the doctrine of pith and
substance were relevant to the analysis, its application cannot justify a
narrow reading of the relevant constitutional amending provisions. It bears
repeating that ss. 38 and 42 of the Constitution Act, 1982 are intended
to ensure that substantial provincial consent will be obtained for
constitutional changes that engage provincial interests. The 7/50 procedure is
the general rule for amendments to the Constitution of Canada. The Attorney
General’s invocation of the language of “pith and substance” does not alter
this principle.

(3) The Implementation
of Consultative Elections Falls Outside the Scope of the Unilateral Federal
Amending Procedure

[68]The Attorney General of Canada argues in the
alternative that, if the implementation of consultative elections requires a
constitutional amendment, then it can be achieved under the unilateral federal
amending procedure (s. 44). More specifically, he argues that the creation of
consultative elections would be an amendment “in relation to . . . the Senate”,
within the meaning of s. 44.

[69]We must reject this argument. As we have seen,
s. 42(1)(b) makes the general amending procedure applicable to changes
to “the method of selecting Senators”. Section 44 is expressly made “[s]ubject
to” s. 42 — the categories of amendment captured by s. 42 are removed from the
scope of s. 44. It follows that the 7/50 procedure, as opposed to the
unilateral federal procedure, applies to the introduction of consultative
elections. Moreover, the scope of s. 44 is limited — it does not encompass
consultative elections, which would change the Senate’s fundamental nature and
role by endowing it with a popular mandate.

(4) Conclusion on How Consultative Elections Can Be Achieved

[70]We conclude that introducing a process of
consultative elections for the nomination of Senators would change our
Constitution’s architecture, by endowing Senators with a popular mandate which
is inconsistent with the Senate’s role as a complementary legislative chamber
of sober second thought. This would constitute an amendment to the Constitution
of Canada in relation to the method of selecting Senators. It thus attracts the
general amending procedure, without the provincial right to “opt out”: s.
42(1)(b), Constitution Act, 1982.

B.Senatorial Tenure

[71]It is not disputed that a change in the duration
of senatorial terms would amend the Constitution of Canada, by requiring a
modification to the text of s. 29 of the Constitution Act, 1867. Section
29(2) provides:

(2) A
Senator who is summoned to the Senate . . . shall . . . hold his place in the
Senate until he attains the age of seventy-five years.

The question before us is which
Part V procedure applies to amend this provision.

[72]The Attorney General of Canada argues that
changes to senatorial tenure fall residually within the unilateral federal
power of amendment in s. 44, since they are not expressly captured by the
language of s. 42. He also contends that the imposition of the fixed terms
contemplated in the Reference[6] would constitute a minor change that does not engage the interests
of the provinces, because those terms are equivalent in duration to the average
length of the terms historically served by Senators.

[73]In essence, the Attorney General of Canada
proposes a narrow textual approach to this issue. Section 44 of the Constitution
Act, 1982provides: “Subject to sections 41 and 42, Parliament may
exclusively make laws amending the Constitution of Canada in relation to . . .
the Senate . . . .” Neither s. 41 nor s. 42 expressly applies to amendments in
relation to senatorial tenure.[7] It follows, in his view, that the proposed changes to senatorial
tenure are captured by the otherwise unlimited power in s. 44 to make
amendments in relation to the Senate.

[74]We agree that the language of s. 42 does not
encompass changes to the duration of senatorial terms. However, it does not
follow that all changes to the Senate that fall outside of s. 42 come within
the scope of the unilateral federal amending procedure in s. 44: see Whyte, at
pp. 102-3.

[75]We are unable to agree with the Attorney General
of Canada’s interpretation of the scope of s. 44. As discussed, the unilateral
federal amendment procedure is limited. It is not a broad procedure that
encompasses all constitutional changes to the Senate which are not expressly
included within another procedure in Part V. The history, language, and
structure of Part V indicate that s. 38, rather than s. 44, is the general
procedure for constitutional amendment. Changes that engage the interests of
the provinces in the Senate as an institution forming an integral part of the
federal system can only be achieved under the general amending procedure.
Section 44, as an exception to the general procedure, encompasses measures that
maintain or change the Senate without altering its fundamental nature and role.

[76]When discussing the scope of the unilateral
federal procedure in the federal government’s 1980 proposal for an amending
formula, the then-Minister of Justice Jean Chrétien made statements to the
effect that it would allow Parliament to make constitutional amendments for the
Senate’s continued maintenance and proper functioning, such as, for example, a
modification of the Senate’s quorum requirement at s. 35 of the Constitution
Act, 1867: Minutes of Proceedings and Evidence of the Special Joint
Committee of the Senate and of the House of Commons on the Constitution of
Canada, No. 53, February 4, 1981, at p. 50. He made clear, however, that
significant Senate reform which engages the interests of the provinces could
only be achieved with their consent: ibid., at pp. 67-68.

[77]In our view, this understanding of the
unilateral federal procedure applies to Part V. The Senate is a core component
of the Canadian federal structure of government. As such, changes that affect
its fundamental nature and role engage the interests of the stakeholders in our
constitutional design — i.e.the federal government and the provinces —
and cannot be achieved by Parliament acting alone.

[78]The question is thus whether the imposition of
fixed terms for Senators engages the interests of the provinces by changing the
fundamental nature or role of the Senate. If so, the imposition of fixed terms
can only be achieved under the general amending procedure. In our view, this
question must be answered in the affirmative.

[79]As discussed above, the Senate’s fundamental
nature and role is that of a complementary legislative body of sober second
thought. The current duration of senatorial terms is directly linked to this
conception of the Senate. Senators are appointed roughly for the duration of
their active professional lives.[8] This security of tenure is intended to allow Senators to function
with independence in conducting legislative review. This Court stated in the Upper
House Reference that, “[a]t some point, a reduction of the term of office
might impair the functioning of the Senate in providing what Sir John A.
Macdonald described as ‘the sober second thought in legislation’”: p. 76. A
significant change to senatorial tenure would thus affect the Senate’s
fundamental nature and role. It could only be achieved under the general
amending procedure and falls outside the scope of the unilateral federal
amending procedure.

[80]The imposition of fixed senatorial terms is a
significant change to senatorial tenure. We are not persuaded by the argument
that the fixed terms contemplated in the Reference are a minor change because
they are equivalent in duration to the average term historically served by
Senators. Rather, we agree with the submission of the amici curiae that
there is an important “qualitative difference” between tenure for the rough
duration of a Senator’s active professional life and tenure for a fixed term:
factum, at para. 88. Fixed terms provide a weaker security of tenure. They
imply a finite time in office and necessarily offer a lesser degree of
protection from the potential consequences of freely speaking one’s mind on the
legislative proposals of the House of Commons.

[81]It may be possible, as the Attorney General of
Canada suggests, to devise a fixed term so lengthy that it provides a security
of tenure which is functionally equivalent to that provided by life tenure.
However, it is difficult to objectively identify the precise term duration that
guarantees an equivalent degree of security of tenure. As Professor Desserud
writes:

A one-year term would
certainly not provide sufficient opportunity for the Senate to fulfill its duty
to be a chamber of sober second thought. . . . The question becomes one of
degree. If not one year, what about two? What about three? And so on. . . . Drawing
an absolute line between when a term limit is too short and acceptably short is
impossible.

[82]The difficulty in determining how long
senatorial terms should be in order to safeguard the Senate’s role as a body of
sober second thought suggests that this is at heart a matter of policy. The
very process of subjectively identifying a term long enough to leave intact the
Senate’s independence engages the interests of the provinces and requires their
input. The imposition of fixed terms, even lengthy ones, constitutes a change
that engages the interests of the provinces as stakeholders in Canada’s
constitutional design and falls within the rule of general application for
constitutional change — the 7/50 procedure in s. 38.

[83]We note that although s. 42 does not apply to
the imposition of fixed terms, no province would be able to exercise a right to
“opt out” of a reform of tenure that garnered the requisite level of provincial
consent. Such a change would constitute an institutional reform that affects
the independence of the Senate and the senatorial office. It does not affect
the legislative powers, property rights, or any other rights or privileges of
the legislature or government of a province. Consequently, it does not trigger
the right to “opt out” provided in s. 38(2) of the Constitution Act, 1982.

3. He shall be legally or equitably
seised as of Freehold for his own Use and Benefit of Lands or Tenements held in
Free and Common Socage, or seised or possessed for his own Use and Benefit of
Lands or Tenements held in Franc-alleu or in Roture, within the Province for
which he is appointed, of the Value of Four thousand Dollars, over and above
all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out
of or charged on or affecting the same;

4. His Real and Personal Property
shall be together worth Four thousand Dollars over and above his Debts and
Liabilities;

5. He shall be resident in the
Province for which he is appointed;

6. In the Case of Quebec he shall
have his Real Property Qualification in the Electoral Division for which he is
appointed, or shall be resident in that Division.

[85]The Constitution Act, 1867 established
two property qualifications for Senators: a real property qualification
requiring them to own land worth at least $4,000 in the province for which they
are appointed (s. 23(3)), and a requirement that they have a personal net worth
of at least $4,000 (s. 23(4)). The Attorney General of Canada argues that
Parliament can repeal the provisions setting out these requirements through the
unilateral federal amendment procedure. The Attorney General of Quebec contends
that the repeal of the real property qualification in s. 23(3) would affect the
operation of s. 23(6), which allows Quebec Senators to either reside in the
electoral division for which they are appointed or to fulfill their real
property qualification in that division. It follows, in his view, that Quebec’s
consent is required to repeal the provision.

[86]We conclude that the net worth requirement (s.
23(4)) can be repealed by Parliament under the unilateral federal amending
procedure. However, a full repeal of the real property requirement (s. 23(3))
requires the consent of Quebec’s legislative assembly, under the special
arrangements procedure. Indeed, a full repeal of that provision would also
constitute an amendment in relation to s. 23(6), which contains a special
arrangement applicable only to the province of Quebec.

(1) The Net Worth Requirement

[87]As discussed above, the unilateral federal
procedure to amend the Constitution is limited in scope. It does not permit
amendments that engage the interests of the provinces by modifying the Senate’s
fundamental nature or role. The question is thus whether the removal of the net
worth requirement would modify the Senate’s fundamental nature or role.

[88]There is nothing in the material before us to
suggest that removing the net worth requirement would affect the independence
of Senators or otherwise affect the Senate’s role as a complementary
legislative chamber of sober second thought. This change is qualitatively
different than implementing consultative elections for Senators or changing
their security of tenure, which affect the fundamental nature and role of the
Senate.

[89]Therefore, removing the net worth requirement
does not engage the interests of the provinces. This is supported by the fact
that none of the intervening provinces opposed the repeal of the requirement or
argued that their interests were engaged by the amendment.

[90]We conclude that the repeal of s. 23(4) is
precisely the type of amendment that the framers of the Constitution Act,
1982 intended to capture under s. 44. It updates the constitutional
framework relating to the Senate without affecting the institution’s
fundamental nature and role.

(2) The Real Property Requirement

[91]Similarly, the removal of the real property
requirement (s. 23(3), Constitution Act, 1867) would not alter the
fundamental nature and role of the Senate. However, the removal of the real
property requirement for Quebec’s Senators would constitute an amendment in
relation to a special arrangement. It would thus attract the special
arrangements procedure and require the consent of Quebec’s National Assembly
(s. 43, Constitution Act, 1982).

[92]Section 22 of the Constitution Act, 1867provides
that each Senator from Quebec is appointed to represent one of the province’s
24 electoral divisions. Historically, this was intended to ensure that Quebec’s
Anglophone minorities would be represented in the Senate, by making it
mandatory to appoint Senators specifically for divisions in which the majority
of the population was Anglophone: J. Woehrling, “Le recours à la procédure de
modification de l’article 43 de la Loi constitutionnelle de 1982 pour
satisfaire certaines revendications constitutionnelles du Québec”, in P. Thibault,
B. Pelletier and L. Perret, eds., Essays in Honour of Gérald-A. Beaudoin:
The Challenges of Constitutionalism (2002), 449, at pp. 489-90. Section 23(6)
is linked to the implementation of this special arrangement: it provides a
degree of flexibility to Senators from Quebec by allowing them to either reside
in the electoral division for which they are appointed or to simply
fulfill their real property qualification in that division.

[93]A full repeal of s. 23(3) would render
inoperative the option in s. 23(6) for Quebec Senators to fulfill their real
property qualification in their respective electoral divisions, effectively
making it mandatory for them to reside in the electoral divisions for which
they are appointed. It would constitute an amendment in relation to s. 23(6),
which contains a special arrangement applicable to a single province, and
consequently would fall within the scope of the special arrangement procedure.
The consent of Quebec’s National Assembly is required.

[94]However, the real property qualification in s.
23(3) could be partially removed by making the provision inapplicable to
Senators from all provinces except those from Quebec. This would not engage the
interests of the provinces and can be achieved under the unilateral federal
amending procedure.

VI.Senate Abolition: How Can It Be Achieved?

[95]Finally, the Reference asks which of two
possible procedures applies to abolition of the Senate: the general amending
procedure or the unanimous consent procedure?

[96]The Attorney General of Canada argues that the
general amending procedure applies because abolition of the Senate falls under
matters which Part V expressly says attract that procedure — amendments in
relation to “the powers of the Senate” and “the number of members by which a
province is entitled to be represented in the Senate” (s. 42(1)(b) and (c)).
Abolition, it is argued, is simply a matter of “powers” and “members”: it
literally takes away all of the Senate’s powers and all of its members.
Alternatively, the Attorney General of Canada argues that since abolition of
the Senate is not expressly mentioned anywhere in Part V, it falls residually
under the general amending procedure.

[97]We cannot accept the Attorney General’s
arguments. Abolition of the Senate is not merely a matter of “powers” or
“members” under s. 42(1)(b) and (c) of the Constitution Act,
1982. Rather, abolition of the Senate would fundamentally alter our
constitutional architecture — by removing the bicameral form of government that
gives shape to the Constitution Act, 1867 — and would amend Part V,
which requires the unanimous consent of Parliament and the provinces (s. 41(e),
Constitution Act, 1982).

[98]It is argued that s. 42(1)(b) and (c),
which expressly make the general amending procedure applicable to changes to
the “powers” of the Senate and to the “number” of Senators allotted to each
province, brings abolition of the Senate within the scope of the general
amending procedure.

[99]We cannot accept this argument. It
misunderstands the purpose of the express mention of the Senate in s. 42(1)(b)
and (c). This provision captures Senate reform, which implies the
continued existence of the Senate: Pelletier, La modification
constitutionnelle au Canada, at pp. 221-24. Outright abolition falls beyond
its scope.

[100]As discussed above, the references to the Senate
in s. 42 were made in anticipation of future Senate reform. The Quebec Court of
Appeal aptly captured this historical context and its relevance in interpreting
s. 42:

The
interpretation of section 42 must also take account, in particular, that
because of the inability of the federal government and the provinces to agree
in 1982 on a total reform of the Constitution, including the Senate, amongst
other institutions, the framers decided to postpone further discussion of the
matters it contains, while specifying the applicable amending procedure to
incorporate an eventual consensus in the Constitution.

(Quebec
Senate Reference, at para. 40)

[101]Abolition of the Senate was not on the minds of
the framers of the Constitution Act, 1982. Rather, they turned their
minds to the main aspects of Senate reform that were discussed in the years
prior to patriation: the distribution of seats in the Senate, the powers of the
Senate, and the manner of selecting Senators. They expected ongoing discussion
of these aspects of Senate reform and made it clear, through their choice of
words in s. 42, that these reforms would require a substantial degree of
federal-provincial consensus. However, they assumed that the evolution of
Canada’s system of government would be characterized by a degree of continuity
— that constitutional change would be incremental and that some core
institutions would remain firmly anchored in our constitutional order.

[102]To interpret s. 42 as embracing Senate abolition
would depart from the ordinary meaning of its language and is not supported by
the historical record. The mention of amendments in relation to the powers of
the Senate and the number of Senators for each province presupposes the
continuing existence of a Senate and makes no room for an indirect abolition of
the Senate. Within the scope of s. 42, it is possible to make significant
changes to the powers of the Senate and the number of Senators. But it is
outside the scope of s. 42 to altogether strip the Senate of its powers and
reduce the number of Senators to zero.

B.Abolishing the Senate Would Alter the Part V
Amending Formula

[103]The Attorney General of Canada argues that
Senate abolition can be accomplished without amending Part V and that it
therefore does not fall within the scope of s. 41(e), which requires
unanimous federal-provincial consent for amendments to Part V. He argues that
the Senate can be abolished without textually modifying the provisions of Part
V. The references to the Senate in Part V would simply be viewed as “spent” and
as devoid of legal effect.

[104]The Attorney General further submits that the
Part V amending procedures would remain functional despite the presence of
these “spent” provisions, since the Senate’s failure to adopt a resolution
authorizing a constitutional amendment can be overridden after the expiration
of a 180-day period: s. 47(1), Constitution Act, 1982. Moreover, he
submits that the Senate’s role in the unilateral federal amending procedure (s.
44) can be eliminated under the general amending procedure, by changing the
definition of Parliament in s. 17 of the Constitution Act, 1867 so as to
remove the upper house.

[105]The Attorney General supplements these
submissions with the argument that the effects of Senate abolition on Part V
would be merely incidental and that they should not trigger the application of
the unanimous consent procedure. In his view, Senate abolition would not be,
“in pith and substance”, an amendment in relation to Part V.

[106]We disagree with these submissions. Once more,
the Attorney General privileges form over substance. Part V is replete with
references to the Senate and gives the Senate a role in all of the amending
procedures, except for the unilateral provincial procedure: Pelletier, La
modification constitutionnelle au Canada, at pp. 220-21. Part V was drafted
on the assumption that the federal Parliament would remain bicameral in nature,
i.e.that there would continue to be both a lower legislative chamber
and a complementary upper chamber. Removal of the upper chamber from our
Constitution would alter the structure and functioning of Part V. Consequently,
it requires the unanimous consent of Parliament and of all the provinces (s.
41(e)).

[107]The Attorney General of Canada’s argument that
the upper chamber could be removed without amending Part V fails to persuade us.
As discussed, the notion of an amendment to the Constitution of Canada is not
limited to textual modifications — it also embraces significant structural
modifications of the Constitution. The abolition of the upper chamber would
entail a significant structural modification of Part V. Amendments to the
Constitution of Canada are subject to review by the Senate. The Senate can veto
amendments brought under s. 44 and can delay the adoption of amendments made
pursuant to ss. 38, 41, 42, and 43 by up to 180 days: s. 47, Constitution
Act, 1982. The elimination of bicameralism would render this mechanism of
review inoperative and effectively change the dynamics of the constitutional
amendment process. The constitutional structure of Part V as a whole would be fundamentally
altered.

[108]The argument that Senate abolition would only
have “incidental” or secondary effects on Part V also fails to persuade us. The
effects of Senate abolition on Part V are direct and substantial. While it is
true that the Senate’s role in constitutional amendment is not as central as
that of the House of Commons or the provincial legislatures, its ability to
delay the adoption of constitutional amendments nevertheless provides an
additional mechanism to ensure that they are carefully considered. Indeed, the
Senate’s refusal to authorize an amendment can give the House of Commons pause
and draw public attention to amendments: Smith, at p. 152.

[109]Since the effects of Senate abolition on Part V
cannot be characterized as incidental, it is not necessary to decide whether
there exists a doctrine — analogous to the “pith and substance” doctrine,
discussed above — that justifies applying the general amending procedure to a
constitutional amendment that has incidental effects on a matter coming within
the unanimous consent procedure.

C.Conclusion on Abolition of the Senate

[110]The review of constitutional amendments by an
upper house is an essential component of the Part V amending procedures. The
Senate has a role to play in all of the Part V amending procedures, except for
the unilateral provincial procedure. The process of constitutional amendment in
a unicameral system would be qualitatively different from the current process.
There would be one less player in the process, one less mechanism of review. It
would be necessary to decide whether the amending procedure can function as
currently drafted in a unicameral system, or whether it should be modified to
provide for a new mechanism of review that occupies the role formerly played by
the upper chamber. These issues relate to the functioning of the constitutional
amendment formula and, as such, unanimous consent of Parliament and of all the
provinces is required under s. 41(e) of the Constitution Act, 1982.

VII.Conclusion

[111]The majority of the changes to the Senate which
are contemplated in the Reference can only be achieved through amendments to
the Constitution, with substantial federal-provincial consensus. The
implementation of consultative elections and senatorial term limits requires
consent of the Senate, the House of Commons, and the legislative assemblies of
at least seven provinces representing, in the aggregate, half of the population
of all the provinces: s. 38 and s. 42(1)(b), Constitution Act, 1982.
A full repeal of the property qualifications requires the consent of the
legislative assembly of Quebec: s. 43, Constitution Act, 1982. As for
Senate abolition, it requires the unanimous consent of the Senate, the House of
Commons, and the legislative assemblies of all Canadian provinces: s. 41(e),
Constitution Act, 1982.

(a)
a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7,
the Senate Reform Act;

(b)
a fixed term of ten years or more for Senators;

(c)
a fixed term of eight years or less for Senators;

(d)
a fixed term of the life of two or three Parliaments for Senators;

(e)
a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution
Act, 2006 (Senate tenure);

(f)
limits to the terms for Senators appointed after October 14, 2008 as set out in
subclause 4(1) of Bill C-7, the Senate Reform Act; and

(g)
retrospective limits to the terms for Senators appointed before October 14,
2008?

No.

2.Is it within the legislative authority of
the Parliament of Canada, acting pursuant to section 91 of the Constitution
Act, 1867, or section 44 of the Constitution Act, 1982, to enact
legislation that provides a means of consulting the population of each province
and territory as to its preferences for potential nominees for appointment to
the Senate pursuant to a national process as was set out in Bill C-20, the Senate
Appointment Consultations Act?

No.

3.Is it within the legislative authority of
the Parliament of Canada, acting pursuant to section 91 of the Constitution
Act, 1867, or section 44 of the Constitution Act, 1982, to establish
a framework setting out a basis for provincial and territorial legislatures to
enact legislation to consult their population as to their preferences for
potential nominees for appointment to the Senate as set out in the schedule to
Bill C-7, the Senate Reform Act?

5.Can an amendment to the Constitution of
Canada to abolish the Senate be accomplished by the general amending procedure
set out in section 38 of the Constitution Act, 1982, by one of the
following methods:

(a)
by inserting a separate provision stating that the Senate is to be abolished as
of a certain date, as an amendment to the Constitution Act, 1867or as a
separate provision that is outside of the Constitution Acts, 1867 to 1982 but
that is still part of the Constitution of Canada;

(b)
by amending or repealing some or all of the references to the Senate in the
Constitution of Canada; or

38. (1) [General procedure for amending Constitution of Canada] An
amendment to the Constitution of Canada may be made by proclamation issued by
the Governor General under the Great Seal of Canada where so authorized by

(a)
resolutions of the Senate and House of Commons; and

(b)
resolutions of the legislative assemblies of at least two-thirds of the
provinces that have, in the aggregate, according to the then latest general
census, at least fifty per cent of the population of all the provinces.

(2)
[Majority of members] An amendment made under subsection (1) that derogates
from the legislative powers, the proprietary rights or any other rights or
privileges of the legislature or government of a province shall require a
resolution supported by a majority of the members of each of the Senate, the
House of Commons and the legislative assemblies required under subsection (1).

(3)
[Expression of dissent] An amendment referred to in subsection (2) shall not
have effect in a province the legislative assembly of which has expressed its
dissent thereto by resolution supported by a majority of its members prior to
the issue of the proclamation to which the amendment relates unless that
legislative assembly, subsequently, by resolution supported by a majority of
its members, revokes its dissent and authorizes the amendment.

(4)
[Revocation of dissent] A resolution of dissent made for the purposes of
subsection (3) may be revoked at any time before or after the issue of the
proclamation to which it relates.

39. (1) [Restriction on proclamation] A proclamation shall not be
issued under subsection 38(1) before the expiration of one year from the
adoption of the resolution initiating the amendment procedure thereunder,
unless the legislative assembly of each province has previously adopted a
resolution of assent or dissent.

(2)
[Idem] A proclamation shall not be issued under subsection 38(1) after the
expiration of three years from the adoption of the resolution initiating the
amendment procedure thereunder.

40.
[Compensation] Where an amendment is made under
subsection 38(1) that transfers provincial legislative powers relating to
education or other cultural matters from provincial legislatures to Parliament,
Canada shall provide reasonable compensation to any province to which the
amendment does not apply.

41.
[Amendment by unanimous consent] An amendment to
the Constitution of Canada in relation to the following matters may be made by
proclamation issued by the Governor General under the Great Seal of Canada only
where authorized by resolutions of the Senate and House of Commons and of the
legislative assembly of each province:

(a)
the office of the Queen, the Governor General and the Lieutenant Governor of a
province;

(b)
the right of a province to a number of members in the House of Commons not less
than the number of Senators by which the province is entitled to be represented
at the time this Part comes into force;

(c)
subject to section 43, the use of the English or the French language;

(d)
the composition of the Supreme Court of Canada; and

(e)
an amendment to this Part.

42. (1) [Amendment by general procedure] An amendment to the
Constitution of Canada in relation to the following matters may be made only in
accordance with subsection 38(1):

(a)
the principle of proportionate representation of the provinces in the House of
Commons prescribed by the Constitution of Canada;

(b)
the powers of the Senate and the method of selecting Senators;

(c)
the number of members by which a province is entitled to be represented in the
Senate and the residence qualifications of Senators;

(f)
notwithstanding any other law or practice, the establishment of new provinces.

(2)
[Exception] Subsections 38(2) to (4) do not apply in respect of amendments in
relation to matters referred to in subsection (1).

43.
[Amendment of provisions relating to some but not
all provinces] An amendment to the Constitution of Canada in relation to any
provision that applies to one or more, but not all, provinces, including

(a)
any alteration to boundaries between provinces, and

(b)
any amendment to any provision that relates to the use of the English or the
French language within a province,

may
be made by proclamation issued by the Governor General under the Great Seal of
Canada only where so authorized by resolutions of the Senate and House of
Commons and of the legislative assembly of each province to which the amendment
applies.

44.
[Amendments by Parliament] Subject to sections 41
and 42, Parliament may exclusively make laws amending the Constitution of
Canada in relation to the executive government of Canada or the Senate and
House of Commons.

45. [Amendments by provincial legislatures] Subject to section 41, the
legislature of each province may exclusively make laws amending the
constitution of the province.

46. (1) [Initiation of amendment procedures] The procedures for
amendment under sections 38, 41, 42 and 43 may be initiated either by the
Senate or the House of Commons or by the legislative assembly of a province.

(2)
[Revocation of authorization] A resolution of assent made for the purposes of
this Part may be revoked at any time before the issue of a proclamation
authorized by it.

47. (1) [Amendments without Senate resolution] An amendment to the
Constitution of Canada made by proclamation under section 38, 41, 42 or 43 may
be made without a resolution of the Senate authorizing the issue of the
proclamation if, within one hundred and eighty days after the adoption by the
House of Commons of a resolution authorizing its issue, the Senate has not
adopted such a resolution and if, at any time after the expiration of that
period, the House of Commons again adopts the resolution.

(2)
[Computation of period] Any period when Parliament is prorogued or dissolved
shall not be counted in computing the one hundred and eighty day period
referred to in subsection (1).

48.
[Advice to issue proclamation] The Queen’s Privy
Council for Canada shall advise the Governor General to issue a proclamation
under this Part forthwith on the adoption of the resolutions required for an
amendment made by proclamation under this Part.

49. [Constitutional conference] A constitutional conference composed of
the Prime Minister of Canada and the first ministers of the provinces shall be
convened by the Prime Minister of Canada within fifteen years after this Part
comes into force to review the provisions of this Part.

Judgment accordingly.

Solicitor for the Attorney General of Canada: Attorney General of
Canada, Ottawa.

Solicitor
for the intervener the Attorney General of Ontario: Attorney General of
Ontario, Toronto.

Solicitors
for the intervener the Attorney General of Quebec: Bernard, Roy &
Associés, Montréal.

Solicitor
for the intervener the Attorney General of Nova Scotia: Attorney General of
Nova Scotia, Halifax.

Solicitor
for the intervener the Attorney General of New Brunswick: Attorney General of
New Brunswick, Fredericton.

Solicitor
for the intervener the Attorney General of Manitoba: Attorney General of
Manitoba, Winnipeg.

Solicitor
for the intervener the Attorney General of British Columbia: Attorney General
of British Columbia, Victoria.

Solicitors
for the intervener the Attorney General of Prince Edward Island: Stewart
McKelvey, Charlottetown.

Solicitor
for the intervener the Attorney General for Saskatchewan: Attorney General for
Saskatchewan, Regina.

Solicitor
for the intervener the Attorney General of Alberta: Attorney General of
Alberta, Edmonton.

Solicitor
for the intervener the Attorney General of Newfoundland and Labrador: Attorney
General of Newfoundland and Labrador, St. John’s.

Solicitor
for the intervener the Attorney General of the Northwest Territories: Attorney
General of the Northwest Territories, Yellowknife.

Solicitor
for the intervener the Attorney General of Nunavut: Attorney General of
Nunavut, Iqaluit.

[1]
See for example TheSpecial Joint Committee of the Senate and of the
House of Commons on the Constitution of Canada: Final Report (1972) (the “Molgat-MacGuigan
Report”), at p. 35; Report on Certain Aspects of the Canadian Constitution
(1980), at pp. 35-36; P. McCormick, E. C. Manning and G. Gibson, Regional
Representation: The Canadian Partnership (1981), at pp. 109-10.

[2]
See for example the Task Force on Canadian Unity, A Future Together:
Observations and Recommendations (1979), at pp. 98 and 128-29.

[3]
See for example the Molgat-MacGuigan Report, at p. 35, and the discussion in M.
Lalonde, Constitutional Reform: House of the Federation (1978), at pp. 7
et seq.

1. The
amendment from time to time of the Constitution of Canada, except as
regards matters coming within the classes of subjects by this Act assigned
exclusively to the Legislatures of the provinces, or as regards rights or
privileges by this or any other Constitutional Act granted or secured to the
Legislature or the Government of a province, or to any class of persons with
respect to schools or as regards the use of the English or the French language
or as regards the requirements that there shall be a session of the Parliament
of Canada at least once each year, and that no House of Commons shall continue
for more than five years from the day of the return of the Writs for choosing
the House: provided, however, that a House of Commons may in time of real or
apprehended war, invasion or insurrection be continued by the Parliament of
Canada if such continuation is not opposed by the votes of more than one-third
of the members of such House.

1. The
Amendment from Time to Time, notwithstanding anything in this Act, of the
Constitution of the Province, except as regards the Office of Lieutenant
Governor.

[6]
The first Reference question contemplates the following terms, in addition to
the non-renewable nine-year term in Bill C-7: a non-renewable term of ten years
or more; a non-renewable term of eight years or less; a non-renewable term for
the life of two or three Parliaments; and a renewable eight-year term, as set
out in Bill S-4.

42.
(1) An amendment to the Constitution of Canada in relation to the following
matters may be made only in accordance with subsection 38(1):

. . .

(b) the powers of
the Senate and the method of selecting Senators;

(c) the number of
members by which a province is entitled to be represented in the Senate and the
residence qualifications of Senators;

[8]
Under s. 29 of the Constitution Act, 1867 as it stood
when originally enacted, Senators were appointed for life (see s. 29(1)). The
duration of their tenure was reduced to the attainment of 75 years of age by
the Constitution Act, 1965, S.C. 1965, c. 4, s. 1. In the Upper House
Reference, this Court found that “[t]he imposition
of compulsory retirement at age seventy-five did not change the essential
character of the Senate”: pp. 76-77.

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